R. v. Alkhalil
- Citation
- 2022 BCSC 1296
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- Supreme Court of British Columbia
- Decision
- 22 July 2022
- Posture
- Criminal Jury Trial / Application for Arrest Warrant and S.475 Waiver; Trial to Continue in Absence of Accused; Adjournment for Further Submissions on Adverse Inference
- Language
- English
More details
- Court
- Supreme Court of British Columbia
- Decision
- 22 July 2022
- Posture
- Criminal Jury Trial / Application for Arrest Warrant and S.475 Waiver; Trial to Continue in Absence of Accused; Adjournment for Further Submissions on Adverse Inference
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
On the evidence before the court (RCMP urgent notification confirming Alkhalil left custody), the judge found that Alkhalil had absconded and therefore waived his right to be present under s.475; accordingly the trial will continue in his absence and a Canada-wide arrest warrant was issued.
Court disposition
Application granted in part: court found Alkhalil had absconded and waived his right to be present under s.475; trial to continue in his absence; Canada-wide arrest warrant issued; matter of adverse inference adjourned.
Orders
- Warrant for the arrest of Rabih Alkhalil to be issued and to be Canada-wide
- Rabih Alkhalil deemed to have waived his right to be present at trial under s.475 of the Criminal Code and the trial will continue in his absence
- Application concerning permitting the jury to draw an adverse inference from the absconding adjourned for further submissions
- Jury instructed to ignore media reports and decide the case solely on evidence presented in court
- Publication ban imposed under s.648(1) of the Criminal Code restricting publication of any portion of the trial when the jury is not present until the jury retires to consider its verdict
- Counsel to make any necessary applications on July 26; jury adjourned to July 27
02
Material facts
Parties
Regina
Crown Counsel: M. Sheardown; S. Dworkin; N. Gregoire; A. Cochrane; D. Darby; A. LaBarRabih Alkhalil also known as Robby Alkhalil
Accused Counsel: R.S. Fowler, Q.C.; K.A. Blok; A. TollidayLarry Ronald Amero
Accused Counsel: M.A. Rock; J. Myers; J. Oppal03
Procedural history
Posture
Criminal Jury Trial / Application for Arrest Warrant and S.475 Waiver; Trial to Continue in Absence of Accused; Adjournment for Further Submissions on Adverse Inference
04
Questions and positions
Legal issues
- 01
Whether Rabih Alkhalil has absconded
- 02
Whether absconding constitutes waiver of the right to be present under s.475 of the Criminal Code
- 03
Whether a Canada-wide arrest warrant should issue
- 04
Whether the jury may draw an adverse inference from the accused's absconding
- 05
Appropriate jury directions and media restrictions
Party arguments
- Applicant
- The Crown relied on RCMP evidence that Alkhalil left custody and absconded, sought a Canada-wide arrest warrant and that s.475 deem him to have waived his right to be present so the trial may continue in his absence.
- Respondent
- Defence opposed continuation in the accused's absence and potential adverse inferences, challenging the finding of waiver and seeking protection of the accused's procedural rights (arguments summarized from defence positions raised at hearing).
05
Court’s reasoning
Legal principles
- 01
Criminal Code, R.S.C. 1985, c. C-46, s.475
An accused who absconds may be deemed to have waived the right to be present at trial under s.475 of the Criminal Code
- 02
Statute and inherent judicial powers
Trial judge has authority to issue an arrest warrant and to specify its territorial extent, including Canada-wide
- 03
Common law principles on jury instruction and criminal procedure; Criminal Code s.648(1) publication ban
Jury must be instructed to decide the case only on evidence presented in court and to ignore extraneous media reports; adverse inference from absconding is a matter for the judge to decide and instruct upon after submissions
06
Ratio, limits and disposition
Ratio decidendi
On the evidence before the court (RCMP urgent notification confirming Alkhalil left custody), the judge found that Alkhalil had absconded and therefore waived his right to be present under s.475; accordingly the trial will continue in his absence and a Canada-wide arrest warrant was issued.
Obiter and limits
- Judge warned jurors that the accused is presumed innocent and directed them to ignore media reports about the absconding
- Request to permit the jury to draw an adverse inference from the absconding was adjourned for further submissions
- A publication ban under s.648(1) restricts publication of any portion of the trial when the jury is not present until the jury retires to consider its verdict
Court disposition
Application granted in part: court found Alkhalil had absconded and waived his right to be present under s.475; trial to continue in his absence; Canada-wide arrest warrant issued; matter of adverse inference adjourned.
- Warrant for the arrest of Rabih Alkhalil to be issued and to be Canada-wide
- Rabih Alkhalil deemed to have waived his right to be present at trial under s.475 of the Criminal Code and the trial will continue in his absence
- Application concerning permitting the jury to draw an adverse inference from the absconding adjourned for further submissions
- Jury instructed to ignore media reports and decide the case solely on evidence presented in court
- Publication ban imposed under s.648(1) of the Criminal Code restricting publication of any portion of the trial when the jury is not present until the jury retires to consider its verdict
- Counsel to make any necessary applications on July 26; jury adjourned to July 27
Source and reliance status
Supreme Court of British Columbia · 22 July 2022
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Supreme Court of British Columbia
Judgment· 22 July 2022
2022 BCSC 1296 R. v. Alkhalil
IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Alkhalil, 2022 BCSC 1296 Date: 20220722 Docket: 27393-168 Registry: Vancouver Regina v. Rabih Alkhalil also known as Robby Alkhalil and Larry Ronald Amero Restriction on Publication: A publication ban has been mandatorily imposed under s. 648(1) of the Criminal Code of Canada, restricting the publication, broadcasting or transmission in any way of any portion of the trial at which the jury is not present. This publication ban applies until the jury retires to consider its verdict Before: The Honourable Justice Maisonville Oral Ruling re Application No. 168 - Alkhalil Absconding Counsel for the Crown: M. Sheardown S. Dworkin N. Gregoire A. Cochrane D. Darby A. LaBar Counsel for the Accused Alkhalil: R.S. Fowler, Q.C. K.A. Blok A. Tolliday Counsel for the Accused Amero: M.A. Rock J. Myers J. Oppal Place and Date of Trial/Hearing: Vancouver, B.C. July 22, 2022 Place and Date of Ruling: Vancouver, B.C. July 22, 2022 [1] THE COURT: The Crown seeks an order for the arrest of Rabih Alkhalil, and further requests that the warrant be Canada wide. The Crown also seeks an order, pursuant to s. 475 of the Criminal Code, R.S.C. 1985, c. C-46, deeming that Mr. Alkhalil has waived his right to be present at his trial and to continue the trial in his absence. [2] The Crown's application also seeks that the jury be permitted to draw an
adverse inference against Mr. Alkhalil from the fact that he has absconded. This latter request is adjourned pending further discussions and submissions. [3] I am satisfied on reviewing the material filed, including the Coquitlam RCMP's urgent request to the public issued last night indicating that Mr. Alkhalil was confirmed to have left the North Fraser Pre-trial institution in a white Econoline van with two others at 6:48 p.m. travelling westbound, that he has absconded, and I find that he has waived his right to be present at the trial, and this trial will continue in his absence. [4] I also make the following order, that there be a warrant for the arrest of Mr. Alkhalil, and that this warrant will be Canada wide. [5] There has been extensive media coverage on this matter, which I have reviewed with counsel this morning. I propose to make the following remarks to the jury: By now, some, or all of you, will have heard Mr. Alkhalil has absconded. I will instruct you later on what use, if any, you can make of this fact. I remind you again that both accused, including Mr. Alkhalil who is not before you, is presumed innocent until the Crown has proven their guilt beyond a reasonable doubt. The trial will continue in the absence of Mr. Alkhalil, and the Crown will have to prove his guilt to you beyond a reasonable doubt, as well as Mr. Amero. I am instructing all of you now not to
pay any further attention to any media accounts of Mr. Alkhalil's absconding, or if you read or hear anything on the internet, social media or otherwise, I ask you to ignore it, and I am directing you to do that. This direction is in accordance with my initial directions to you that you must decide this case on the basis of evidence presented in this courtroom. [6] I would then adjourn for counsel to make any applications necessary to Tuesday, July 26, and adjourn the jury to next Wednesday, July 27. [DISCUSSIONS RE RULING FROM 11:07:25 A.M. TO 11:09:50 A.M.] "Maisonville J."
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